16-272-cr
United States v. Almonte

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
31 st day of May, two thousand seventeen.

Present: PIERRE N. LEVAL, ROSEMARY S. POOLER, PETER W. HALL, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 16-272-cr

MARCO ALMONTE, aka MARCU S ALMONTE, aka MARCUS ANTONIO, aka SEALED DEFENDANT 1,

Defendant-Appellant

.

_____________________________________________________

Appearing for Appellant: Marco Almonte, pro se, Otisville, NY.

Appearing for Appellee: Richard Cooper, Assist ant United States Attorney (Brian R. Blais, Assistant United States Attorney, on the brief ), for Joon H. Kim, Acting United States Attorney fo r the Southern District of New York, New York, NY.

Appeal from the United States Di strict Court for the Southern Di strict of New York (Failla, J. ).2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Defendant-Appellant Marco Almonte, proceed ing pro se, appeals from the January 25, 2016 judgment of conviction of the United States Dist rict Court for the Southern District of New York (Failla, J. ), convicting him, after a ju ry trial, on one count of be ing a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The charge stemmed fr om Almonte’s encounter with, and subsequent arrest by, O fficers Hines and Cadavid as he was exiting a public park after hours, during which the officers r ecovered a loaded firearm from his jacket. On appeal, he challenges the district court’s denial of his s uppression motion, the validity of the superseding indictment, the district court’s preclusion of evidence at trial, the court’s response to a jury inquiry, and the procedural reasona bleness of his sentence. He al so raises various claims of
ineffective assistance of counsel. We assume th e parties’ familiarity w ith the underlying facts, procedural history, and specifi cation of issues for review.

I. The Motion to Suppress

On appeal, Almonte primarily challenges the district court’s denial of his motion to suppress a firearm and ammunition recovered af ter an encounter with Officers Hines and Cadavid. “In an appeal from a district court’ s ruling on a motion to suppress, we review legal conclusions de novo and findings of fact for clear error.” United States v. Freeman , 735 F.3d 92, 95 (2d Cir. 2013). Mixed questions of law and fact are reviewed de novo. Id. We “pay special deference to the district court’s factual determinations going to witness credibility.” United
States v. Jiau , 734 F.3d 147, 151 (2d Cir. 2013).

A. Findings of fact

When reviewing for clear error, we may revers e only if we are “left with the definite and
firm conviction that a mistake has been committed.” United States v. Andino , 768 F.3d 94, 98 (2d Cir. 2014) (internal quotation marks omitted). “W here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States v. Murphy , 703 F.3d 182, 188 (2d Cir. 2012). Upon review, we conclude that the district court’s factual findings were not clear ly erroneous. A lthough Almonte correctly identifies some discrepancies between the tes timony of Hines and Cadavid, thes e discrepancies were either
reconcilable or not relevant to the district court’s legal determination. Almonte further argues
that the district court should have credited his affidavit testimony that, upon encountering Almonte, Hines immediately “ordered” him to stop and put his hands in the air. Appellant’s Pro
Se Br. at 1. However, the district court found cred ible the testimony of Hines and Cadavid, a finding to which we pay “special deference.” See Jiau , 734 F.3d at 151. And because Almonte’s account, which contradicted the account s of both Hines and Cadavid, was only one of “two permissible views of the evidence,” the dist rict court’s finding that Hines did not so order Almonte was not clearly erroneous. Murphy , 703 F.3d at 188.3 B. Legal conclusions and mixed questions

Almonte contends that the initial encounter was not consensual. It is immaterial, however, whether the initial encounter was consensual if the o fficers had reasonable suspicion so as to justify a non-consensual Terry stop. Almonte argues that th e officers lacked reasonable suspicion to believe he was trespassing in the park after hours. We disagree. The park had been
closed for several hours when the officers found him there. Even if the officers lacked probable cause at that time to arrest Almonte, they had reasonable suspicion. In any event, the district court properly concluded that he abandoned his jacket (and the fire arm contained therein) before
he was seized. The firearm and ammunition reco vered from Almonte’s abandoned jacket did not
result from his arrest.

We also reject Almonte’s argument that th e Government’s failure to argue in its prehearing suppression brie fing that the initial en counter was consensual constituted a variance from the indictment in violation of his Fifth Amendment rights and then-existing Federal Rule of Criminal Procedure 12(e). The initial indictme nt did not contain a ny factual allegations regarding the nature of the enc ounter from which to vary, and Ru le 12 on its face applies only to motions, not arguments by the party opposing a Rule 12 motion.

II. Almonte’s Remaining Arguments

Almonte’s remaining arguments are without merit. First, the Government was not required to prove to the grand ju ry the fact of prior convictions for enhanced penalties under 18 U.S.C. § 924(e) because the fact of a prior conviction is a sentencing factor , not an element of
the offense. See Almendarez-Torres v. United States , 523 U.S. 224, 239–247 (1998); see also
United States v. Arline , 835 F.3d 277, 280–81 (2d Cir. 2016).

Second, the district court did not err by precluding Almonte from attempting to demonstrate at trial that the stop was pursuant to the City’s stop-and-frisk policy rather than reasonable suspicion that he was trespassing. A district court’s ev identiary rulings are reviewed for abuse of discretion, and we will reverse only for “manifest error,” United States v. Al Kassar

, 660 F.3d 108, 123 (2d Cir. 2011), evidenced by an “arbitrary and irrational” ruling. United States v. Daugerdas , 837 F.3d 212, 226 (2d Cir. 2016) (inter nal quotation marks omitted). Here, while relevant to the district court’s suppression ruling, the events leading up to the stop were not
relevant to the elements the Government needed to prove at trial. Therefore, the district court did not commit error, much less manifest erro r, in precluding such evidence at trial.

Third, the district court did not err by refusing to allow the jurors to take the firearm into the jury room during deliberations. A district court “enjoys consid erable discretion in construing the scope of a jury inquiry and in frami ng a response tailored to the inquiry.” United States v. Rommy , 506 F.3d 108, 126 (2d Cir. 2007). We conclude that the district c ourt’s compromise of allowing each juror to examine the firearm and jacket in open court, c oupled with its admonishment that the jurors should not deliberat e or have discussions while in open court, was
reasonable and far from an abuse of discretion.4 Fourth, Almonte argues that his prior state conviction for assa ult in the firs t degree did not count as a predicate offense for incr easing his base offense level under Section 2K2.1(a)(4)(A) of the Sentencing Guidelines. U.S.S. G § 2K2.1(a)(4)(A). Almonte concedes that first degree assault generally count s as a predicate offense, but ar gues that it should not count in his case because he pleaded gui lty to that offense under a theo ry of “acting in concert,” Appellant’s Pro Se Br. at 28, and, without examini ng the plea transcript, th e district court could not establish whether he personally used force. This argument is meritless. Under New York law, anyone convicted of an offense based on acce ssorial conduct is liable as a principal, and
Almonte was therefore liable for the use of force. See N.Y. Penal Law § 20.00.

Fifth, we conclude that, even if Almonte is co rrect that one of his prior state convictions
should not have contributed to his criminal hi story category, any error was harmless because the district court explicitly stated that it would impose the same sentence based on the 18 U.S.C. § 3553(a) factors regardless of Almo nte’s criminal history category. See, e.g.

, United States v.
Jass , 569 F.3d 47, 68 (2d Cir. 2009).

Finally, Almonte raises several claims of ineff ective assistance of counsel. Here, most of
Almonte’s contentions are fact-bound and involve extra-record conversations. Accordingly, the record on this appeal does not contain the info rmation needed to adjudicate his claim, and we
therefore decline to do so. These claims may be presented in a 28 U.S.C. § 2255 motion.

We have considered the remainder of Alm onte’s arguments and find them to be without
merit. 1 Accordingly, the order of the di strict court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 We have also considered the arguments raised in the counseled brief filed on Almonte’s behalf, but only to the extent that they are consistent with Almonte’s arguments.